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Jennifer Vuona, Sara Hunter Hudson, Julia Kuo, and Catherine Wharton, America Corp v. Merrill Lynch & Co.

May 14, 2013


The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:


Plaintiffs Jennifer Vuona, Sara Hunter Hudson, Julia Kuo, and Catherine Wharton (collectively, "plaintiffs") move this Court to review the Clerk of Court's taxation of costs and to deny such costs to defendants Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc., and Bank of America Corp. (collectively, "defendants"), pursuant to Federal Rule of Civil Procedure 54(d)(1) and S.D.N.Y. Local Civil Rule 54.1. Alternatively, plaintiffs ask the Court to hold the motion in abeyance pending the resolution in state court of their claims pursuant to the New York City Human Rights Law. Defendants oppose this motion. For the reasons that follow, the Court denies plaintiffs' motion and affirms the Clerk's taxation of costs, with the exception of $148.50, which the Clerk awarded to defendants for copying costs associated with providing courtesy copies of their motion papers to the Court.

I.Procedural History

On September 2, 2010, plaintiffs filed their complaint, alleging that their employment was unlawfully terminated on the basis of gender, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq.; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. §§ 290 et seq.; and the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code §§ 8--101 et seq. Dkt. 1. Vuona also alleged that she had been unlawfully retaliated against for opposing discrimination proscribed by these laws. Id. After the close of fact discovery, defendants moved for summary judgment. Dkt. 31 & 33. In an Opinion and Order dated January 24, 2013 ("Opinion"), the Court granted defendants' motion as to plaintiffs' Title VII and NYSHRL claims, Dkt. 67, but declined to exercise supplemental jurisdiction as to plaintiffs' NYCHRL claims, which it dismissed without prejudice. Id.

On February 22, 2013, a Bill of Costs hearing was held before Judgment Clerk Michael Lee. On February 25, 2013, the Clerk entered a judgment granting to defendants costs of $6,420.50. Dkt. 69. On March 1, 2013, plaintiffs filed this motion to review the Clerk's Taxation of Costs. Dkt. 70. In support, plaintiffs submitted a memorandum of law ("Pl. Br."), Dkt. 71, and the Declaration of Anne L. Clark ("Clark Decl."), Dkt. 72, and accompanying exhibits. On March 12, 2013, defendants submitted an opposition to the motion ("Def. Br."), Dkt. 73. Plaintiffs did not submit a reply. See Dkt. 74.

II.Applicable Legal Standard

Rule 54(d)(1) provides that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party. . . . The clerk may tax costs on 14 days' notice. On motion served within the next 7 days, the court may review the clerk's action." Fed. R. Civ. P. 54(d)(1).*fn1

In reviewing a clerk's taxation of costs, a district court is to "exercis[e] its own discretion to 'decide the cost question [it]self.'" Whitfield v. Scully, 241 F.3d 264, 269 (2d Cir. 2001) (quoting Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 233 (1964)). However, "because Rule 54(d) allows costs 'as of course,' such an award against the losing party is the normal rule obtaining in civil litigation, not an exception." Adkins v. Gen. Motors Acceptance Corp., 363 F. App'x 97, 99 (2d Cir. 2010) (quoting Whitfield, 241 F.3d at 270). The burden to demonstrate that costs should not be imposed therefore lies with the losing party. Id.

Whether a litigant is a "prevailing party" turns on whether there has been a "judicially sanctioned change in the legal relationship of the parties." Dattner v. Conagra Foods, Inc., 458 F.3d 98, 101 (2d Cir. 2006) (quoting Buckhannon Bd. & Care Home, Inc., v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 605 (2001)) (holding that judgments on the merits or court-ordered consent decrees constitute such a judicially sanctioned change). A prevailing party need not have been successful on every claim in the litigation. Rather, "[a] party who is only partially successful also can be deemed a prevailing party. . . . [A] claimant who has obtained some relief usually will be regarded as the prevailing party even though he has not sustained all his claims." Hamptons Locations, Inc. v. Rubens, No. 01-CV-5477 (DRH)(WDW), 2010 WL 3522808, at *4 (E.D.N.Y. Sept. 2, 2010) (quoting 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2667, at 212 (3d ed. 1998)); cf. Leblanc-Sternberg v. Fletcher, 143 F.3d 748, 757 (2d Cir. 1998) (citations omitted) ("For a plaintiff to be considered a 'prevailing party,' . . . he need not have succeeded on the central issue in the case . . . . It is sufficient that the plaintiff succeeded on any significant issue in [the] litigation . . . if he received actual relief on the merits of his claim [that] materially alters the legal relationship between the parties . . . ."); Carroll v. Blinken, 42 F.3d 122, 129 (2d Cir. 1994).


A.Defendants Are the Prevailing Parties for the Purposes of Rule 54(d)(1)

Plaintiffs argue that defendants are not "prevailing parties," and thus are not entitled to recover costs. That argument is based on the Court's having declined to exercise supplemental jurisdiction over plaintiffs' NYCHRL claims, and having dismissed those claims without prejudice. Plaintiffs argue that that disposition prevents defendants from being held "prevailing parties," under Rule 54(d), because "the legal relationship between plaintiffs and defendants remains unaltered by the Court's dismissal of plaintiffs' Title VII and NYSHRL claims." Pl. Br. 4. Plaintiffs further represent that they "intend to re-file their claims in New York County Supreme Court," Pl. Br. 6; Clark Decl. ¶ 2, and, therefore, state that their "legal claims against defendants . . . remain very much alive." Pl. Br. 4.

Defendants counter that, because the Court granted summary judgment to defendants on all claims over which it retained jurisdiction, and on the majority of the claims brought before it, defendants are fairly characterized as prevailing parties. Def. Br. 3.

The Court agrees with defendants. The Court granted summary judgment in favor of defendants on all of the plaintiffs' Title VII and NYSHRL claims. These represented the bulk of plaintiffs' claims brought before this Court. Although the Court elected not to address plaintiffs' NYCHRL claims and these therefore remain to be pursued in state court, their dismissal without prejudice was not ...

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